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Protecting the Person and the Home

Housing Law Responds to the Needs of Survivors of Violence

By
Katherine E. Walz
July 2012

Tiffanie Alvera was physically attacked by her husband in their apartment in 1999. After being treated at a local hospital for her injuries Alvera obtained a restraining order barring her husband from the premises. When she presented a copy of her order to property management, she was given a twenty-four-hour notice to vacate her apartment. The termination notice was based upon the husband’s assault of Alvera a few days earlier. Alvera’s attempts to pay rent were rebuffed, and she faced repeated refusals to lease a smaller apartment. In the first legal challenge of its kind regarding “zero tolerance for violence” in rental housing policies, Alvera filed with the U.S. Department of Housing and Urban Development (HUD) a complaint alleging that the apartment complex’s actions constituted sex discrimination in violation of the Fair Housing Act (because 90 percent to 95 percent of domestic violence victims are women) (HUD ex rel. Tiffani Ann Alvera v. CBM Group, No. 10-99-0538-8 (HUD April 16, 2001) (Clearinghouse No. 53,895) (charge of discrimination); see Wendy R. Weiser & Geoff Boehm, Housing Discrimination Against Victims of Domestic Violence, 35 Clearinghouse Review 708, 717 (March–April 2002)).

What Alvera and her attorneys achieved in the litigation, however, is far greater than the consent decree. Alvera’s case set in motion an evolution in thinking as to how state and federal housing laws and policies could be used to protect survivors.

Since Alvera, the U.S. Congress and HUD have recognized the housing discrimination crisis faced by survivors of violence. In its Conference Report accompanying the 2002 fiscal year HUD appropriations bill, Congress issued a mandate that HUD “develop plans to protect victims of domestic violence from being discriminated against in receiving or maintaining public housing because of their victimization” (H.R. Rep. No.107-272, at 120 (2001)). In 2003 HUD, with the assistance of national domestic violence advocates, responded by creating Chapter 19 of thePublic Housing Occupancy Guidebook, guidance for local housing authorities on the treatment of victims of domestic violence (U.S. Department of Housing and Urban Development, Public Housing Occupancy Guidebook (2003)). Most important, in January 2006 the reauthorization of the Violence Against Women Act and Department of Justice Reauthorization Act of 2005 (VAWA), 42 U.S.C. §§ 1437d, 1437f, included new housing language related to providing safe, long-term housing solutions and housing protections for victims of domestic violence, stalking, and dating violence. This 2005 law covers victims in need of or living in public housing, Project-based Section 8 housing, or housing with a Housing Choice Voucher and prohibits their denial of admission or eviction from housing.

And Alvera and her attorneys shed a light on the possible opportunities under the Fair Housing Act to pursue affirmative litigation on behalf of a client experiencing violence. Following the path created by Alvera, the following cases, among others, were initiated:

Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005). (Clearinghouse No. 55,887). Only three days after her husband physically assaulted her in his apartment, Quinn Bouley was threatened with eviction. The termination notice referred to the violence brought against her as the primary reason for the eviction. In the district court’s denial of cross motions for summary judgment, the court recognized that Bouley’s claim that she was threatened with eviction because she was a victim of domestic violence “could constitute unlawful discrimination under the Fair Housing Act” (id.at 678). The district court also found that Bouley had demonstrated a prima facie case of sex discrimination under the Fair Housing Act because it was “undisputed that, less than 72 hours after the Plaintiff’s husband assaulted her, the defendant attempted to evict her” (id.).

Lewis v. North End Village>/i>, No. 2:07-cv-10757 (E.D. Mich. Feb. 21, 2007) (complaint). Tanica Lewis was threatened with eviction after her ex-boyfriend stalked her, broke windows of her apartment, and kicked in her door. Lewis had a protection order against the ex-boyfriend and before the incident had informed property management of the protection order and the ex-boyfriend’s continued stalking.Management claimed that it had a right to evict her because her lease made her liable for any damage resulting from failing to supervise her guests properly. Lewis filed suit, alleging that the management’s actions violated the Fair Housing Act and Michigan’s Civil Rights Act because the actions were based upon gender stereotypes and had a disproportionate impact on women, who make up the overwhelming majority of domestic violence victims (id.). About a year after the suit was filed, the parties reached agreement on a comprehensive set of policies prohibiting the evictions or discrimination against survivors of violence and permitting survivors to end their leases early or relocate if they are in fear of future harm (see also Warren v. Ypisilanti Housing Commission, No. 4:02 cv 40034 (E.D. Mich. Feb. 6, 2002) (complaint); Id. No. 02-728-cz, complaint (Mich. Cir. Ct. June 17, 2002); for more information, see www.aclu.org/womens-rights/warren-v-ypsilanti-housing-commission).

Robinson v. Cincinnati Metropolitan Housing Authority, 2008 U.S. Dist. LEXIS 39523 (S.D. Ohio April 29, 2008). Yolaunda Robinson sought a transfer to another public housing unit after her ex-boyfriend physically assaulted her and threatened to kill her. Denying the transfer request, the housing authority stated that it had no policy on permitting transfers when there was an incident of domestic violence.Robinson filed suit, claiming that the housing authority’s policy of not providing for transfers when there was a threat of domestic violence constituted sex discrimination in violation of the Fair Housing Act and the Ohio Civil Rights Act (id.at *4, *5). The district court found that housing authority’s policy of denying transfers was facially neutral because it applied to almost all types of crime victims(id. at *12). The district court also found that Robinson had not been denied a dwelling since she still had a home and had not been evicted (id. at *9). The court rejected the argument that Robinson was afraid to live in her home and therefore would be homeless without the transfer; the court agreed instead with the housing authority’s view that her fear of returning was unrelated to the housing authority(id. at *12, *13). This unfortunate decision reminds us that each Fair Housing Act suit contemplated under this theory must be carefully considered.

Cleaves-Milan v. AIMCO Elm Creek L.P., No. 09 CV 6143 (N.D. Ill. Oct. 1, 2009) (Clearinghouse No. 56,145) (complaint). Kathy Cleaves-Milan was threatened with eviction after her fiancé and coleaseholder tried to kill her and himself in their apartment and even after she obtained a protection order and sought to remove him from the lease. Like Alvera, management pursued the eviction under a“zero tolerance for criminal activity” on the premises. Cleaves-Milan filed suit, claiming that the nation’s largest owner and operator of rental housing in this country had a “zero tolerance” for crime policy that had a disparate impact on domestic violence victims and therefore constituted sex discrimination in violation of the Fair Housing Act and the Illinois Human Rights Act.

The work is far from being done. On the horizon for advocates is the 2011 reauthorization of VAWA, a long anticipated opportunity to improve and build upon the 2005 law. The proposed list of amendments include expanding VAWA to cover sexual violence and to other federally assisted housing programs, ensuring proper enforcement of VAWA by HUD, and mandating emergency transfer provisions for survivors who live in public and project-based Section 8 housing in order to correct the problem identified in Robinson. A growing number of municipalities have adopted aggressive property nuisance codes or “crime-free” rental housing ordinances that obligate owners, under threat of losing their license to operate rental property in that jurisdiction, to evict all tenants when there is a crime on the premises or multiple police calls for assistance (see www.addisonpoliceillinois.org/crime/pdf/Ordinance09-54.pdf and www.countryclubhills.org/uploadedFiles/13-Business%20Licensing.pdf#page=127). To limit a survivor’s access to police assistance under a threat of homelessness or to blame survivors’ for the crime committed against them likely violates the First Amendment right to petition the government and the Fair Housing Act (see Note,Denying Access to Justice: The Cost of Applying Chronic Nuisance Laws to Domestic Violence, 108 Columbia Law Review 118 (2008)). Like property owners and managers, municipal actions should not interfere with a survivor’s own safety or hold them accountable for a perpetrator’s actions.